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SUPREME COURT OF INDIA
Abhay S. Oka, Pankaj Mithal, JJ.
Nanhe - Appellant
Versus
State Of U.P. – Respondent
Criminal Appeal No. 2791 of 2023
Decided On : 21-11-2023
(A) Indian Penal Code, 1860 – Section 302 read with Section 86 – Arms Act, 1959 – Section 25 – Murder – Life sentence – Deceased died of a fire arm shot received in his neck and same was fired from country made pistol possessed by appellant – If a person has intention to commit an offence or cause death of any person but kills one whose death he never intended to cause, he would still be guilty of causing death – As per Doctrine of Transfer of Malice or Transmigration of Motive, appellant is guilty of committing offence of culpable homicide amounting to murder punishable under Section 302 of IPC – Intention to kill some other person is not material in as much as he had intention of committing offence of murder though accidently he might have killed another person – Where no evidence was led to show that accused was incapacitated to form requisite intention due to influence of drink, killing of a person would be offence of murder – Once killing was complete, public had thrashed and beaten him mercilessly – Inability to speak in such a situation would not be sufficient indication that level of intoxication was so high that he was unable to understand and take a conscious decision – It is not the case of appellant that he was administered intoxication without his knowledge or against his will, provision of Section 86 IPC would not be applicable and he would not be entitled to reduction of sentence from Section 302 IPC to one falling under Part-II of Section 304 IPC – No illegality in impugned judgment and order of High Court in confirming conviction and punishing appellant under Section 302 IPC. (Paras 8, 12, 16, 20, 23, 25 and 26)
(B) Indian Penal Code, 1860 – Section 86 – Offence committed under intoxication – In applying the provision, following twin conditions have to be satisfied – First that accused was administered a thing which intoxicated him without his knowledge or against his will – Secondly, intoxication has to be of level which incapacitated him of knowing nature of act committed or likely to be committed by him – Not only accused be intoxicated but also level of his intoxication be such as to render him incapable of knowing and understanding what he is doing or likely to do – Evidence to prove his incapacity to understand nature of his action is mandatory to reduce criminality of accused. (Paras 19 and 20)
Facts of the case:
Trial court vide judgment and order dated 14.05.2010 held the accused-appellant to be guilty of offence under Section 302 IPC and sentenced him to life imprisonment with fine of Rs.5000/- and in the event of default in payment of fine to undergo additional one year of imprisonment. Trial court also held the accused to be guilty for an offence under Section 25 of the Arms Act and imposed punishment of two years of rigorous imprisonment with fine of Rs.1000/-. judgment and order of conviction and sentencing accused was affirmed by the High Court. Only aspect which requires consideration by us is whether said offence is liable to be reduced to culpable homicide not amounting to murder falling under second part of Section 304 IPC in view of fact that the appellant had no intention to kill deceased.
Findings of Court:
Appeal is devoid of merit and is accordingly dismissed with no order as to cost. However, appellant is at liberty to apply for remission in accordance with remission policy of State in vogue and in the event such power is invoked, State is expected to consider it on its own merit most expeditiously.
Result : Appeal dismissed.
JUDGMENT :
PANKAJ MITHAL, J.
1. Heard learned counsel appearing for the parties.
2. In an incident which took place on 30.05.2007 at about 3:30 p.m. in the market area, one Mahendra was injured and one Saddam Hussain, son of the informant, Mohd. Ali was killed. Two cases, one crime No.169/2007 under Section 304 and 308 IPC and another case crime No.170/2007 under Section 25 of Arms Act, 1959 were registered against the accused Nanhe.
3. Both the cases were clubbed and were tried as Sessions Trial Nos. 1097 of 2007 and 1212 of 2007 by Special Judge, S.C./S.T.(P.A.) Act,1989. The trial court vide judgment and order dated 14.05.2010 held the accused Nanhe to be guilty of an offence under Section 302 IPC and sentenced him to life imprisonment with fine of Rs.5000/- and in the event of default in payment of fine to undergo additional one year of imprisonment. The trial court also held the accused to be guilty for an offence under Section 25 of the Arms Act and imposed punishment of two years of rigorous imprisonment with fine of Rs.1000/-.
4. The judgment and order of conviction and sentencing the accused was affirmed by the High Court vide its judgment and order dated 31.01.2019 passed in criminal appeal No.4474 of 2010. It may be worth noting that a single appeal was filed by the accused against his conviction in both the cases.
5. The aforesaid judgment and order of the High Court has been assailed by the accused/convict by means of the present appeal.
6. The submission of learned counsel for the appellant is that there was no intention of the appellant to kill the deceased. His death was accidental. His intention could have been only to kill Mahendra and not the deceased Saddam Hussain. The appellant at the relevant time was heavily intoxicated and as such was not in a position to even know what he was doing. The case would therefore, fall under Part II of Section 304 IPC and not under Section 302 IPC.
7. The informant, Mohd. Ali lodged a written FIR at police station Moosajhag, district- Badaun on 30.05.2007 stating that on the said date at about 3:30 p.m. he was going from home to the shop of Sant Ram for purchasing some domestic items along with his son, Saddam Hussain (deceased). When he reached the shop, he saw Mahendra and Nanhe (appellant) quarrelling with each other. Sant Ram, who is none other than the brother of Mahendra intervened and asked Nanhe (appellant) to leave the place. On this, Nanhe (appellant) left but after walking 15 to 20 steps from there, he turned around and with his country made pistol fired a shot which piercing the neck of the deceased hit the head of Mahendra. Nanhe (appellant) was caught on the spot. Saddam was taken to the district hospital where he died.
8. There is no dispute to the fact that Saddam Hussain died of a fire arm shot received in his neck and that the same was fired from the country made pistol possessed by the appellant Nanhe. The weapon of offence and the cartridges were recovered from him. It is also an admitted position as established from the evidence on record that the single shot fired from the said country made pistol after hitting and piercing the deceased in his neck had finally hit Mahendra in his head with whom he was having an altercation a few minutes earlier.
9. On the basis of the evidence of the eye witnesses though one of them had turned hostile, the trial court as well as the High Court came to a definite conclusion that the appellant is guilty of an offence under Section 302 IPC.
10. The only aspect which requires consideration by us is whether the said offence is liable to be reduced to culpable homicide not amounting to murder falling under second part of Section 304 IPC in view of the fact that the appellant had no intention to kill the deceased as he had fired with the intention to settle his score with Mahendra with whom he had entered into a harsh argument. The other aspect which needs consideration is as to what would be the impact of the intoxication of the appell
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